Punjab-Haryana High Court
Joginder Alias Kala vs State Of Haryana on 29 April, 2011
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal S-567-SB of 1998
Date of Decision : April 29, 2011
Joginder alias Kala
.....Appellant
Versus
State of Haryana
....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. S.S. Malik, Advocate
Mr. Raja Sharma, Assistant Advocate General, Haryana.
T.P.S. MANN, J.
The appellant, alongwith Anil Kumar, Devinder, Surinder and Pardeep @ Kala, was tried for offences under Sections 399 and 402 IPC. Vide judgment and order dated 8/9.7.1998, Additional Sessions Judge, Sonepat convicted them for the offence under Section 399 IPC and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for one year. They were also convicted under Section 402 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for one year. Both the sentences were ordered to run concurrently.
Crl. Appeal S-567-SB of 1998 -2- Aggrieved of his conviction and sentence, the appellant filed the present appeal whereas Anil Kumar, Devinder and Surinder filed Criminal Appeals S-572-SB of 1998, S-617-SB of 1998 and S- 744-SB of 1998. As all the appeals arise out of the same judgment of conviction and sentence, they are being disposed of together. It may also be mentioned here that Pardeep @ Kala convict had filed Criminal Appeal S-559-SB of 1998 but the said appeal has already been disposed of as having abated on account of his death.
According to the prosecution, SI Inder Singh of Police Station Ganaur, accompanied by a number of other police officials, was present near Bus Stand of Village Pipli Khera on G.T. Road in connection with investigation of case FIR No.19/97 under Sections 395/457 IPC, where he received a secret information that five young boys present in a Kotha of village Pipli Khera near G.T. Road were planning to commit decoity. They were armed with pistols and swords. A motorcycle was also standing outside the said Kotha and if a raid was conducted, they could be apprehended. On receiving the information, SI Inder Singh prepared a raiding party. Constables Daya Kishan and Satbir Singh were sent to call respectable/independent witnesses. As per the instructions of the informer, the police party encircled the said Kotha. Two motorcycles were parked in front of the Kotha. Door of the Kotha was lying closed from inside. The persons in the Kotha were talking with each other. One of them stated "Devinder, today we will Crl. Appeal S-567-SB of 1998 -3- loot the Jain Petrol Pump, G.T. Road, Ganaur as it was still open and if somebody obstructed then Joginder would open fire." At this, SI Inder Singh declared in a loud voice that they had been gheoraoed (encircled) by the police and asked them to come out while raising arms, failing which the police would open fire. At this, the door of the Kotha was opened and five young boys came out one by one, who were identified by SI Inder Singh with the help of torch light and they were apprehended. The first accused who came out was Devinder, then Joginder @ Kala followed by Surinder, Anil Kumar and Pardeep @ Kala. The search of Devinder led to recovery of one loaded country made pistol of .315 bore. Similar pistol, duly loaded, was recovered from Joginder @ Kala, while a knife was recovered from Surinder whereas a sword each was recovered from Anil Kumar and Pardeep. A motorcycle of Rajdoot make without registration number and another motor cycle of Yamaha make bearing registration No. DL-85A-7224 were taken into possession by the police. Case under Sections 399 and 402 IPC was registered against them. They were arrested in the case.
Upon completion of investigation and presentation of challan, followed by commitment of the case, all the five accused were charged for the offences under Sections 399 and 402 IPC, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 ASI Chand Karan, PW2 C. Sewa Singh, PW3 ASI Ram Chander, PW4 HC Crl. Appeal S-567-SB of 1998 -4- Baljit Singh and PW5 SI Inder Singh.
When examined under Section 313 Cr.P.C., all the accused denied the incriminating evidence produced by the prosecution against them. They claimed to be innocent and false recoveries shown against them. However, no evidence was brought by them in defence.
As mentioned above, all the five accused were convicted and sentenced by the trial Court.
Learned counsel for the appellants had submitted that merely because the accused-appellants were present in the Kotha and some of them were armed with pistols, some with swords and one with knife, did not prove that they had assembled for the purpose of committing dacoity or for making preparation to accomplish that object. Possibility cannot be ruled out about their having gathered for the purpose of committing some other offence. Therefore, the trial Court was not justified in relying upon the prosecution case and convicting the appellants under Sections 399 and 402 IPC. In this regard they placed reliance upon Chaturi Yadav and others v. State of Bihar, (1979) 3 SCC 430.
When the FIR was registered, it had surfaced that there was a secret information against the accused of sitting in a Kotha while armed with pistols and swords and planning to commit decoity. On receipt of the said information, when the police party reached the Crl. Appeal S-567-SB of 1998 -5- pointed place, the persons present there were talking with each other. One out of them addressed another as Devinder stating that they would loot Jain Petrol Pump, G.T. Road, Ganaur and at that time if someone obstructed, then Joginder would shoot. At this, SI Inder Singh, who was leading the police party, loudly stated that all the occupants had been surrounded and they should come out while raising their hands or else would be fired. All the accused came out of the Kotha one by one. They were identified in the torch light. Two of the accused were found to be armed with country made pistols while two others were having swords, whereas the other accused was carrying a knife. To the same effect was the testimony of PW5 SI Inder Singh when he deposed before the trial Court as under :-
"I received a tip off that five gangsters were making preparations in a deserted room in the area of village Pipli Khera for committing dacoity armed with deadly weapons and their motorcycles were seen parked outside the room.
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The deserted room was encircled on three sides. I heard voices coming from inside the room "Devinder, Jain Petrol Pump was to be robbed. Joginder, if somebody causes obstruction shoot him." The door of the room was found closed from inside. I told the gangsters that they had Crl. Appeal S-567-SB of 1998 -6- been surrounded by the accused and asked them to come out of the room with raised hands and surrender. After this all the five accused present in the dock came out of the room one by one raising their hands over their heads and they were apprehended.
First of all accused Devinder came out of the room. He was apprehended by me. Second was Joginder accused who was apprehended by ASI Ram Chander and thereafter came out Surinder accused who was apprehended by HC Baljit Singh. Fourth was apprehended by ASI Ramesh Chand and fifth by Sombir HC.
When search of Devinder accused was taken he was found in possession of a country made .315 calibre pistol (loaded). Search of Joginder accused also led to recovery of a country made pistol of .315 calibre which was also loaded. A spring actuated knife was recovered from the possession of Surinder and one sword each Ex.P1 and P2 were also recovered from Anil and Pardeep. Ex.PB and Ex.PC sketches of swords were prepared and these were taken by me in my possession vide seizure memo Ex.PD and Ex.PE and the motorcycles parked outside the room were taken in my possession vide seizure memo Ex.PF. The motorcycles Rajdoot and Yamaha make were taken by me in my possession under Section 102 Cr.P.C."
Crl. Appeal S-567-SB of 1998 -7- The testimony of SI Inder Singh was amply corroborated by PW3 ASI Ram Chander and PW4 HC Baljit Singh.
In the case of Chaturi Yadav (supra), there was no other allegation against the accused therein except being present in the school premises at 1 A.M. and armed with guns and cartridges. There was no secret information with the police that the accused therein had assembled to commit some decoity. Moreover, no such plan was divulged by any of the accused therein. There was also no allegation as the one in the present case that one of the accused addressing another and stating that as a Petrol Pump was open, it would be looted and if somebody obstructed in their plans then they would fire. Therefore, strictly speaking, the judgment in the case of Chaturi Yadav (supra) is not applicable to the facts and circumstances of the present case. Similarly, another single Bench judgment of Patna High Court in Gholtu Modi and etc. v. State of Bihar, 1986 Crl. L. J. 1031 relied by learned counsel for the appellants is not applicable as in that case the accused persons were found sitting at night and firearms etc. were recovered from them. Apparently, there was no allegation that they were planning to commit dacoity. They were not overheard while planning their strategy.
Learned counsel for the appellants also submitted that recovery memos allegedly prepared by the police at the spot bore FIR number despite the fact that by that time FIR had not been registered.
Crl. Appeal S-567-SB of 1998 -8- This shows that the appellants were apprehended on suspicion and a false case fastened upon them.
A perusal of recovery memos Exs.PD, PE and PF, besides sketches Ex. PB and Ex.PC of the swords do bear the FIR No. as 24 in their respective headings yet the same was inserted in the space initially left blank while writing the same. There is no material to hold that the recovery memos in question were prepared earlier to the registration of the FIR. In fact, FIR number was left blank and the number was inserted later on against the space provided.
Learned counsel for the appellants further submitted that SI Inder Singh, who had led the police party in apprehending the appellants was not competent to investigate the case thereafter.
Whatever investigation was required in the case was conducted at the spot itself. Pursuant to the apprehension of the accused, the weapons carried by them were taken into possession and recovery memos prepared. Thereafter, only formal investigation remained to be done. In case the same was conducted by SI Inder Singh, it would not have caused any prejudice to the accused.
Learned counsel for the appellants finally submitted that the appellants have been facing the agony of criminal prosecution for the last about 14 years. They are on bail for the last more than 12 years. Therefore, their sentences be reduced.
Crl. Appeal S-567-SB of 1998 -9- The prayer made on behalf of the appellants was vehemently opposed by learned State counsel by submitting that the appellants were found involved in a heinous crime. They do not require any leniency in the matter of sentence.
Having heard learned counsel for the parties and taking into consideration the totality of the circumstances, the Court is of the view that the sentences of imprisonment imposed upon the appellants on both the counts are on the higher side.
Resultantly, the conviction of the appellants for the offences under Sections 399 and 402 IPC is maintained. Their substantive sentences of imprisonment on each of the counts is reduced from rigorous imprisonment for five years to rigorous imprisonment for three years. The sentences of fine, alongwith their default clauses are maintained.
Criminal Appeals S-567-SB of 1998, S-572-SB of 1998, S-617-SB of 1998 and S-744-SB of 1998 are, accordingly, disposed of.
( T.P.S. MANN )
April 29, 2011 JUDGE
satish